Academic

Shen, Hoffman, Jones, & Greene on the Model Penal Code & Experimental Jurisprudence

By Lawrence Solum

Francis X. Shen (Vanderbilt Law School), Morris B. Hoffman (Second Judicial District (Denver), State of Colorado), Owen D. Jones (Vanderbilt University - Law School & Department of Biological Sciences), Joshua D. Greene (Harvard University - William James Hall), & Rene Marois (Vanderbilt University - Department of Psychology) have posted Flipping the Culpability Coin: How the Model Penal Code Fails Defendants on SSRN. Here is the abstract:

Punishable guilt requires that bad thoughts accompany bad acts. For this reason, we regularly ask jurors to infer the past mental state of a person they do not know as he acted in ways they did not see. Although this is difficult enough, the heavily influential Model Penal Code (MPC) demands even more. It requires that jurors sort guilty defendant mental states into one of four specific categories, which in turn define the nature of both the crime and the punishment.

The MPC therefore assumes that average people either naturally do ? or at least can, when instructed ? sort mental states into these four categories with reasonable accuracy. It also assumes that average people will rank order these categories of mental state, by increasing amount of punishment, in the same sequence that the MPC prescribes.

Remarkably, the MPC ? now turning 50 ? has escaped the scrutiny of comprehensive empirical research on the accuracy of these and other assumptions that underlie the fundamental structure of its culpability determinations. The new studies reported here tested the validity of certain key MPC assumptions. The findings demonstrate that several critical assumptions embedded in the MPC, and reflected in our societal faith in it, are simply wrong.

Provocative and a must read. Highly recommended. Download it while its hot!

Full post as published by Legal Theory Blog on February 28, 2011 (boomark / email).